Shutting Down Hoder

Hosting Matters, a Florida based web-hosting provider, has recently decided to terminate Hossein Derakhshan‘s influential website on the basis of a defamation allegation by Mehdi Khalaji, an Iranian fellow at the Washington Institute for the Near East Policy, a neo-conservative think-tank because of alleged Khalaji’s support for the Iran Freedom Initiative, a concerted effort for regime change in Iran.

In its own words, Hosting Matters decided to terminate Hossein’s hosting account even though: “we do not have the time, interest, or resources to invest in continually dealing with his complaints and to review your site.” Prior to terminating Hossein’s account, Hosting Matters had asked Hossein not only to remove the allegedly defamatory post, but ALL posts relating to Khaliji and to “refrain from mentioning this person in any form on the site you host within this network.”

The drastic nature of the request is coupled by the following: The post needs to be removed immediately and the entire site rebuilt so that no references remain in any archives or category listings. In addition, any other references you have to this individual are to be removed. Whether you archive them or not is entirely up to you. Such postings cannot, however, remain within this network.

The following assessment by Host Matters is scary. It creates the unfortunate precedent of allowing large media figures to shut down speech by apparently harassing a web host for a week. Moreover, Hosting Matters is most likely immune from liability even if Hossein committed defamation. Section 230 of the Communications Decency Act (CDA) says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This federal law preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The problem here, though, isn’t so much about the Hosting Matters liability against Khalaji, but rather whether it can be held liable by Derakhshan. Immediately, it seems clear that Hosting Matters’ request is probably unconstitutionally overbroad in its request to remove all reference to Khaliji, even supposedly non-defamatory ones and possibly a prior restraint on speech by preventing Hossein to discuss any matters relating to Khaliji in the future.

The problem is that the First Amendment does not apply to private actors, unless the private entity is exercising traditional state functionsif there is excessive interference and cooperation by the state, or if the relevant State constitution allows such suit. As stated by the Supreme Court in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972):

“property does not “lose its private character merely because the public is generally invited to use it for designated purposes,” and that “[t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.”

A State law to the contrary, however, could create a private cause of action. As noted by the Supreme Court in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980):

“Our reasoning in Lloyd, however, does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”

In fact, there has been significant efforts by state supreme courts to circumvent the Supreme Court’s narrow view of the state action requirement. The New Jersey Supreme Court interpreted the free-speech provisions of their state constitution as extending to private owners of shopping malls as well as to state action in New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 650 A.2d 757 (1994).

In Block v. Westminster Mall Company, 819 P.2d 55 (1991), the Colorado Supreme Court found sufficient entanglement with the government to support a finding of state action on the part of a mall and commercial retail center. Moreover, in Block v. Westminster Mall Company, 819 P.2d 55 (1991), the Colorado Supreme Court found sufficient entanglement with the government to support a finding of state action on the part of a mall and commercial retail center.

However, the majority of State courts have not given such flexible interpretation to the state action requirement. Comforting, at least for Hossein, is that there are at least two trial courts in Florida, which appear to adopt a Pruneyard approach, allowing freedom of speech claims against private entities: Reason ’84: The Committee for Citizens’ Rights in Actions v. University Square Associates, Ltd., No. 84-9473 (Fla.Ct., 13th Jud. Cir., Hillsborough County, Fla., June 28, 1984): Reason ’84: The Committee for Citizens’ Rights in Civil Actions v. Albertson’s, Inc., No. 84-7750 (Fla. Cir. Ct., 4th Jud. Cir., Duval County, Fla., July 2, 1984).

Even assuming a flexible approach to the state action requirement applies, there is the larger question as to whether internet hosting accounts resemble shopping malls and should be constrained by the First Amendment or equivalent speech protection found in state constitutions. Central to the California court’s opinion in Pruneyad and also the Supreme Court in Logan Valley Plaza, is the fact that “shopping center serves as the community business block.” Because shopping malls had become the functional equivalent of a business district, shopping malls could not discriminate based on speech.

I’m not going to comment on whether hosting accounts are equivalent to shopping malls, but I think an argument can be made. Shopping malls are large forums which give space to businesses to sell their product. Web hosts are companies that provide space on a server they own for use by their clients as well as providing Internet connectivity, typically in a data center. Underlying these legal arguments, however, is the plain fact that Hosting Matters’ actions are disturbing. Shutting down a blog and seeking to control its contents, even though it is legally permissible, is not an action ANY service provider should be committing. Its enough that all bloggers and activists take notice and petition against their action.

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